quinta-feira, 22 de agosto de 2013

Box is not allowed to retain values ​​in the account to cover loans and financing



Caixa Economica Federal (CEF) can no longer charge values ​​of current accounts or salary accounts of clients to cover portions of overdue loans or financing. The decision - which is valid throughout the national territory - was taken by 5. ª Group 1 of the TRF. ª Region, to assess civil action lodged by the Federal Public Ministry (MPF) against the bank.



In the process, 5. ª Turma declared the annulment of a "standard clause" - used in many contracts - which included the retention values ​​by default, accounts intended to receive money for alimony, like wages, alimony , pension or retirement pension. The restriction will be valid also for contracts with Caixa, but not including payroll loans for pensioners and the National Institute of Social Security (INSS). These holders may have discounted values ​​sheet, but only to the extent of 30% of the pension benefit.



The box was also ordered to return, double and fixed, the values ​​retained customer contracts signed in the last ten years. In case of breach of the decision, the bank will be fined U.S. $ 20,000 per day.



Process



The lawsuit was filed initially in 6. Federal Court in Goiânia / GO, which gave reason to the federal prosecutor. The MPF held that the disputed clause affront Article 649 of the Civil Procedure Code (CPC) - which provides immunity from seizure of funds food - and Article 70 of the Constitution, setting "abusive practice in the consumer market." Also ordered the repayment of amounts, double, based on Article 42 of the Code of Consumer Protection.



On appeal to the Federal Court, the case held no illegality in the standard clause, because it is not of "attachment" but a legitimate negotiating agreed between the parties to resolve possible default and dismissed the assertion abusiveness or "unreasonable disadvantage to the consumer . " Also alleged incompetence of the MPF to present civil action and asked that if chance were unsuccessful, the decision of the TRF worth just under territorial where the action was filed, no nationwide.



All claims, however, were felled by the rapporteur of the action before the Court. On a vote, the federal judge Souza Prudente, reinforced the view that the case, linking the loan to a customer as well - money - has created a bond "real" and not "personal." Thus, under Article 1419 of the Civil Code (CC), the clause should be recognized as "earnest" and submit to their legal rules. Thus, pursuant to Article 1424 of the CC, the contract should stipulate, among other things, the "specifications of such collateral," which is not explicit in the terms of contract.



"What one finds, in fact, is that the CEF attempted to institute a guarantee in your favor real similar to the law grants to the hosts, hostel and food vendors and lessors of real estate, which does not require the prior specification of goods and allows self-enforceability, "quoted the rapporteur.



With respect to loans charged to retirees of the INSS, however, Souza Prudente recognized the legality of payroll deduction, but only to the extent of 30 percent of the benefit and the contracts signed as of the day September 28, 2004 . On this date was published the Law 10.953/2004, which introduced changes in the Law 10.820/03 and authorized the retention values.



Legitimacy



When talking about the competence of the MPF for filing a civil action, the rapporteur noted that the agency acted within its constitutional mandate to defend individual rights homogeneous, arising from a common origin: the case, consumer rights provided for in Articles 81 and 82 of the Code of Consumer Protection. Complementary Law 75/1993 also guarantees the performance of the MPF in matters involving the national financial system. This understanding has been even consolidated by the Superior Court of Justice (STJ).



The federal judge Souza Prudente also emphasized that the civil action must be applied not only in respect to its disciplinary law - Law 7.347/85 - but from the Constitution as an instrument of defense of citizenship. "In this case, the discussion revolves around alleged abusiveness a clause inserted in the contract agreement (...). It is, without doubt, of homogeneous individual interests to the prosecutor's legitimate to defend and can make use of the civil action, "he emphasized.



On the argument that the cancellation clause should apply only within the territory of the Judicial Section of Goiás (SJGO), the magistrate cited previous decisions of the Federal Court and the Supreme Court to affirm the collective actions that aim to protect collective or diffuse interests should have repercussions throughout the national territory.



Thus, the three federal judges who make up the 5. ª Turma Court decided the cancellation clause in the contracts of the box. The only dissenting, that the rapporteur was outvoted, concerns the prescription. By defending the "nullity" - instead of "nothingness" - the contractual arrangement, the magistrates Selene de Almeida and João Moreira Batista were based on Article 178 of the Civil Code to stipulate in four years the statute of limitations of the measure.



Case no. º 0007205-76.2009.4.01.3500



Source: Federal Court 1st Region

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